E. PRACTICE ON APPEAL

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Rule 22: Motions.

(a) Content of Motion; Response. Unless another form is elsewhere prescribed by these rules, an application for an order, unless made during a hearing, shall be made by filing a written motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion and the papers, if any, on which it is based. The motion shall state the grounds on which it is based and the order or other relief requested. Each copy of a motion shall be accompanied by a memorandum of law and if the motion is based on matters not appearing of record, by affidavits or other evidence in support thereof. Any showing in opposition to a motion, other than a procedural motion, shall be served and filed within 10 days after the motion is filed. The court may shorten or extend the time for responding to any motion.

(b) Motions for Procedural Orders. Notwithstanding the provisions of (a) of this Rule 22 as to motions generally, motion for procedural orders, including any motion under Rule 21(b), may be acted upon at any time, without awaiting a response. The motion shall contain a statement concerning efforts to contact adverse counsel and shall reflect whether there is opposition to the motion. An party adversely affected by such action may by application to the court request consideration, vacation or modification of such action. Pursuant to rule or order of the courts, motions for specified types of procedural orders may be disposed of by the clerk.

(c) Disposition of Motions. On request of a party or on its own motion, the appellate court may place any motion on the calendar for hearing or the court may otherwise dispose of the motion as it may determine. When a motion has been placed on the calendar for hearing, the clerk shall notify each party of the date and the time designated for the hearing. Pursuant to rule or order of the court, motions for specified types of procedural orders may be disposed of by the clerk.

(d) Power of Single Judge to Entertain Motions. A single judge of the appellate court may entertain and may grant or deny any request for relief that under these rules may be sought by motion, except that a single judge may not dismiss or otherwise finally dispose of an appeal or other proceeding. The action of a single judge may be reviewed by the court.

(e) Form of Motions; Number of Copies. All papers relating to motions shall comply with the form prescribed in Rule 30. Two copies of the motion shall be filed, but the court may require that additional copies be furnished.

[As amended by order filed February 1, 1995, effective July 1, 1995; by order effective July 1, 1997; and by order filed January 13, 2012, effective July 1, 2012.]

Advisory Commission Comments.

Subdivision (d). This subdivision permits a single judge to grant or deny any requested relief that under these rules may be sought by motion. It is, however, expressly provided that a single judge may not dismiss or otherwise finally dispose of an appeal or other proceeding. Final disposition of an appeal means the termination of an appeal, whether by decision, dismissal, or otherwise. Nothing in this subdivision authorizes a single judge of an appellate court to grant relief that must be sought by some procedure other than by a motion. Some rules require preparation of an application or petition. Since relief under those rules may not properly be sought by motion, a single judge may not grant the requested relief. It would, therefore, be inappropriate for a single judge to grant a request for permission to appeal, since permission is requested by the filing of an application, not by a motion. On the other hand, a single appellate judge may grant a stay or injunction under Rule 7 pending disposition of an application for permission to appeal by the full court. In all cases, the disposition of a motion by a single judge is subject to review by the entire court.

Advisory Commission Comment [1995].

Paragraph (b) allows expeditious disposition of purely procedural motions by the court or the clerk, without awaiting a response. In instances where justice miscarries, a lawyer could apply to the court for retroactive remedy. Paragraph (c) authorizes the court, in its discretion, to grant a hearing on a motion.

Advisory Commission Comment [1997].

Filing rather than service of a motion triggers the response time. The time for opposing a motion is extended from 5 to 10 days.

Advisory Commission Comment [2012].

Paragraphs (b) and (c) are amended to supply a subtitle for each paragraph.